R (Children)

A Family Court fact-finding hearing exists to establish facts necessary for a child’s welfare assessment, not to determine an adult’s criminal culpability. Criminal-law offences, defences and technical concepts therefore have no relevance or function in that exercise. The court should make only findings that are necessary and proportionate to determine the Children Act 1989 threshold and the child’s future welfare, and should avoid language with a bespoke criminal meaning.

Where a hearing has been wrongly focused on criminal culpability and the affected parent has lacked a fair opportunity to prepare and present a material factual issue, the combined errors may breach Article 6 and require a fresh hearing.

Following the mother’s death from a knife wound inflicted during an altercation with the father, care proceedings were brought concerning their two children. The father was acquitted at his criminal trial. The local authority subsequently sought findings in the Family Court that he had used unreasonable force, acted recklessly, and had unlawfully killed the mother.

Theis J found that the father had not acted in self-defence, had used unreasonable force and had unlawfully killed the mother. The father appealed, contending that criminal-law concepts had been wrongly imported into the fact-finding exercise and that his legal team had been given an unfairly short period to prepare for the new factual case.

1. Appeal allowed. The fact-finding hearing was unfair and the matter was remitted for a wholly fresh hearing before a different judge. The new judge was not to see the earlier judgment or transcripts of the evidence, and witnesses were not to be examined by reference to those transcripts.
2. By the majority, the Family Court’s task differs fundamentally from that of a criminal or ordinary civil court. Its purpose is to find past facts, on the balance of probabilities, so that it can assess risk and determine the child’s welfare. It is not to decide criminal guilt, punishment or civil liability. The court approved the analysis in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567 and A Local Authority v S, W and T [2004] EWHC 1270 (Fam).
3. Consequently, criminal-law elements and defences, including the technical law of self-defence and loss of control, have neither relevance nor function in a welfare fact-finding hearing. It was fundamentally wrong to determine the evidence through those concepts or to make a finding of unlawful killing. The detailed facts, rather than criminal labels, were what mattered.
4. The criminal-law error, considered alone, might not inevitably have required a retrial. However, it had focused the hearing on culpability. Combined with the late escalation of the allegations, the very restricted preparation period, and the material uncertainty concerning the father’s account in the solicitors’ letter of 2 December 2016, it meant that he had not received a sufficiently fair trial under Article 6.
5. A Family Court should undertake fact-finding only where it is necessary and proportionate for the Children Act 1989 threshold and the child’s welfare determination. Whether allegations capable of constituting criminal conduct need to be investigated is a case-specific question. The judge should make only findings needed for that purpose and should, where possible, avoid language such as self-defence, reasonable force and loss of self-control.
6. Gloster LJ agreed that the hearing was unfair but cautioned that, after an acquittal, it may be unnecessary to determine detailed issues concerning the killing. In her view, the retrial judge should scrutinise the necessity, proportionality and fairness of determining such issues.

• Court of Appeal (Civil Division) — Allowed the father’s appeal, set aside the fact-finding determination, and remitted the case for a fresh hearing before a different judge: [2018] EWCA Civ 198.
• Family Court — Theis J found that the father had not acted in self-defence, had used unreasonable force and had unlawfully killed the mother. No citation for that judgment was stated.